Bray v. State

Decision Date29 December 1982
Docket NumberNo. 582S205,582S205
Citation443 N.E.2d 310
PartiesRobert BRAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

John L. Kelly, Jr., Gary, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Robert Bray, was convicted by a jury of burglary and attempted burglary, Class B felonies. Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.); Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.). In a bifurcated proceeding, the jury also found that defendant was an habitual offender. He was sentenced to concurrent terms of fourteen years for the burglary and attempted burglary convictions. Those sentences were enhanced an additional thirty years by virtue of his status as an habitual offender. In this direct appeal, he presents the following issues for our review:

1. Whether the trial court erred in overruling defendant's motion to suppress and objections to evidence regarding a pretrial lineup and identification therefrom;

2. Whether the evidence was sufficient to support his conviction for attempted burglary; and

3. Whether the court erred during the habitual offender proceedings by admitting prison records of defendant.

The record reveals that at approximately 11:30 p.m. on September 4, 1980, the residence of Rollie Crawford in Gary, Indiana, was burglarized. When Crawford returned from work at 11:45 that evening, he discovered the door of his home had been pried open and that his stereo system, a disco light, and $300 in United States currency were missing. A neighbor had witnessed suspicious activities outside the home, including the repeated passings of a yellow automobile in the street outside the home; on her way to the neighborhood grocery store, she had encountered a man on the sidewalk outside the home. On her return from the store, she again observed the man as he ran from Crawford's front door to some bushes alongside the street. The man was wearing a short dark coat and was carrying a long black object which resembled a crowbar.

Approximately an hour later, residents adjacent to the Alden Austin home in Gary were also alerted to suspicious activities about that home. Both Marilyn Walker, who lived next door to Austin, and Sandra Boulware, who resided across the street, heard knocking on Austin's door. Both watched as three men left and then returned to the unanswered front door, where they began prying the door from its frame. Boulware called the police, who arrived shortly thereafter. Once the squad car entered the neighborhood, the three men returned to their yellow automobile parked on the street. After one or two minutes, Boulware observed the yellow automobile slowly leaving the neighborhood. She again telephoned police, describing the automobile and its nexus to the suspicious activities. The information was dispatched to patrol cars. Police officers followed the yellow automobile and immediately stopped it and arrested its occupants, amongst which was defendant.

The subsequent police investigation culminated in defendant's conviction for the burglary of the Crawford residence, as well as the attempted burglary of the Austin home. Here, he does not challenge the validity of his conviction for burglary. He expressly concedes in his brief that the evidence, which included an in-court identification by Crawford's neighbor, was sufficient to support that conviction. His contentions are directed toward the validity of his conviction for attempted burglary and the conclusion that he qualified for sentencing as an habitual offender.

I.

At approximately 2:00 p.m. on September 5, Gary police officers conducted a lineup wherein both Boulware and Walker identified defendant as one of the men who had attempted to burglarize the Austin residence. Defendant filed a pretrial motion to suppress evidence regarding the lineup and identifications therefrom. Following a hearing on the motion, it was denied by the trial court. Defendant maintains the trial court erred in finding the evidence admissible. His argument is predicated on two bases.

He first asserts the lineup was improper because it was conducted without the presence of his attorney, thereby violating his right to counsel. It is true, as defendant asserts, that a written waiver of the right to have counsel present at the lineup was not obtained.

The question before us, however, turns on whether the Sixth Amendment right to counsel had attached at the time the lineup occurred. The issue was recently addressed by this Court in Hatcher v. State, (1981) Ind., 414 N.E.2d 561, where we stated:

"The Sixth Amendment right to counsel attached at or after the time that adversary judicial proceedings had been initiated against the accused. Kirby v. Illinois, (1972) 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (plurality opinion). In United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Kirby v. Illinois, supra, the United States Supreme Court held that the right to counsel encompasses the right to have an attorney present at a pre-trial 'lineup' identification procedure conducted at or after the initiation of such criminal proceedings. In this State, the filing of an information or indictment begins the formal criminal process. Winston v. State, (1975) 263 Ind. 8, 11, 323 N.E.2d 228, 230. Therefore an accused is entitled to have counsel present at any 'lineup' which is conducted subsequent to the filing of an information or indictment. Kirby v. Illinois, supra; United States v. Wade, supra; Winston v. State, supra." Id., 414 N.E.2d at 563.

Defendant concedes that at the time the lineup was conducted, he had not been charged with any criminal offense related to the burglary of the Crawford home or the attempted burglary of the Austin residence. He points out, however, that at the time of the lineup, he had been formally charged with a criminal offense, albeit unrelated in time, place, or circumstance to the burglary or attempted burglary at issue. The record reveals that at the time defendant was charged with the burglary and attempted burglary, he was free on bond in the unrelated charge. Relying on case precedent that the right to counsel attaches with a formal charge of "any" criminal offense, he argues that he was entitled to counsel at the lineup by virtue of the fact that charges had been filed against him concerning the unrelated incident.

It is true that in both Kirby v. Illinois, (1972) 406 U.S. 682, 684, 92 S.Ct. 1877, 1879, 32 L.Ed.2d 411, 414, and Winston v. State, (1975) 263 Ind. 8, 12, 323 N.E.2d 228, 230, the phrase "formally charged with any criminal offense" (emphasis added) was employed to describe the determinant at which the right to counsel attaches. The literal intendment defendant asks us to attribute to the term "any," however, lacks a logical or factual foundation.

The philosophical premise upon which it has been held that the right to counsel attaches with the filing of an indictment or information is that via the formal charge, the adversarial process is initiated. In turn, it has been recognized that once a charge has been filed, the presence of counsel is necessary at any critical stage in the proceedings in order to preserve defendant's right to a fair trial. Kirby v. Illinois, supra (plurality opinion); Powell v. Alabama, (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042; Winston v. State, supra. This Court has held that a lineup conducted prior to the filing of an information or indictment is not a critical stage which necessitates the presence of counsel in order to preserve defendant's right to a fair trial. Carman v. State, (1979) Ind., 396 N.E.2d 344. That conclusion is not somehow altered by virtue of the fact that a criminal charge has been filed against a defendant in a wholly unrelated matter; that circumstance does not affect the ability of defendant and counsel to prepare a defense to any charge which is filed concerning the incident which prompted the lineup. Pursuant to Hatcher v. State, supra, and Carman v. State, supra, defendant was not entitled to the presence of counsel by virtue of the charge filed and pending in the unrelated cause. Cf., Landrum v. State, (1981) Ind., 428 N.E.2d 1228 ("arrest" for purposes of Ind.R.Crim.P. 4(A) or (C) is not established by virtue of incarceration in another county on unrelated charge). There was no error here.

Defendant also asserts that evidence of the pretrial lineup and identification therefrom was improper because the lineup was conducted in an impermissibly suggestive manner. He asserts that prior to the lineup, witness Boulware was informed that a suspect was present in the lineup. That practice has been unequivocally condemned by this Court. Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440.

The evidence introduced at the suppression hearing does not support defendant's factual assertion, however. While Boulware testified on direct examination that immediately prior to the lineup, police had told her she "would have to identify him in a lineup ...," she also denied that police officers had indicated that suspects were present in the lineup. Likewise, Police Officer Boris Velovski denied telling the witnesses "that within the lineup were the individuals that had been arrested in the area of the break-in." As an appellate tribunal, this Court cannot reweigh the evidence concerning a factual matter at issue on a motion to suppress. Lane v. State, (1977) 266 Ind. 485, 364 N.E.2d 756. Defendant's factual assertion consequently is without merit. Id.

Defendant's contention that the lineup was conducted in an unnecessarily suggestive manner is also predicated on the alleged disparity in height and weight amongst the subjects contained in the lineup. A photograph of the lineup contained in the record reveals that defendant, who weighs...

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  • Johnson v. State
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